Adoptive Couple v. Baby Girl: the Court revisits ICWA

He signed his unwed-dad rights away by text message — then, when the girl was more than two years old, the baldly race-based Indian Child Welfare Act got them back for him. Today the Supreme Court will hear oral argument in the case of Adoptive Couple v. Baby Girl, otherwise known as the Baby Veronica case. [Washington Post, Michael Schearer, earlier here, here]

Am I the only one who’s tired of the formula “I call BS on that,” which seems to convey little beyond, “I would challenge you to prove that,” except with added rudeness? But strange as it may seem, mainstream accounts of the case (such as on SCOTUSBlog) do describe the father as having “renounced” his rights, and the father himself is not arguing that the electronic and informal manner of the renouncement rendered it void. Today at Supreme Court oral argument, the father’s lawyer, Charles Rothfeld, said (p. 49) “Had ICWA not applied here at all, then the father would have had no right to object to the adoption.” In other words, it is only the father’s affiliation with the Cherokee tribe, and not some principle that text messaging is too flimsy a technological means of renouncing such an important legal right, that let him change his mind and get the child back. Transcript here; SCOTUSBlog here.

According to other accounts, the father also subsequently signed adoption papers immediately before he deployed. He claims he understood the papers were just to establish that the biological mother had sole custody, and he signed because he was going overseas.

Thanks, that’s an important clarification. And I should also note that Rothfeld at a later point did speak as if South Carolina law provided independent grounds for the father to challenge the adoption aside from ICWA. At no point during the argument, so far as I can see, did anyone on either side argue that the father’s relinquishment at the time was ambiguous or tainted.

In the S.C. Supreme Court, the court noted that there are very specific provisions for an Indian parent to relinquish rights. The relinquishment has to be in the presence of a judge, who must certify that the parent understands what he is doing.

The purported adoptive parents and the non-Indian mother did not follow many of the requirements. The relinquishment, noted above. Not properly notifying the tribe, by providing a different name and date of birth that that of the father. By not identifying the baby girl to Oklahoma authorities as an Indian child before removing her from the state. By serving the father with papers 8 days before he was to deploy to Iraq.

Further, the briefs argue that the relinquishment was invalid, and both the S.C. courts found that the proper procedures were not followed for the adoption of an Indian child. Finally, the S.C. trial court found that it was in the best interest of the child to be with her real father, and that the adoptive parents had created the problem. The court noted that “they elected to pursue adoption over his objection. Custody and parental rights cannot be gained by adverse possession.”

This is not a question of race, it is a question of citizenship. We would be outraged if an American child was being adopted under the same circumstances in a foreign country without the U.S. father’s consent. This is no different.